Religious Based Discrimination and the Moore v. Virginia Museum of Natural History Case

The Washington Blade has a story on the Michael Moore v. Virginia Museum of Natural History case wherein the Supreme Court of Virginia refused to hear Moore's appeal. For those not familiar with the case, Moore was fired by the Museum after its executive director discovered that Moore was gay and even the investigation by the Virginia Department of Human Resource Management found that Moore's sexual orientation was a factor in his firing. The case is important because it shows that currently LGBT Virginians have no employment non-discrimination protections - even when they are state employees. It is likewise important because the Supreme Court of Virginia lacked the courage to even write an opinion laying out its reasoning - I believe because once it began to do so, it would have been impossible to avoid getting into the real underlying bigotry against LGBT citizens: religion.

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While it is true as Greg Nevins of Lambda Legal points out that some courts in other jurisdictions have found for gay plaintiffs under the Equal Protection Clause of the U.S. Constitution - an argument that was made extensively in Moore's briefs - the Supreme Court of Virginia lacked the courage even on this issue to take the step of recognizing the rights of gay Virginians much as it lacked courage in Loving v. Commonwealth when it upheld Virginia's ban on interracial marriage in 1966, only to be reversed a year later by the United States Supreme Court.

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From my research, only two recent appellate court decision have touched on the source of anti-gay discrimination. One such case is Lawrence v. Texas, 539 U.S. 558 (2003). In that case, in striking down the Texas sodomy statute – and indirectly Virginia’s own statute as well – the Court stated in relevant part as follows:
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The condemnation [of homosexuals] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
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The other case is Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), where the Iowa Supreme Court recognized that the underlying animus against homosexuals is religious based. Specifically, the Iowa Supreme Court stated in relevant part as follows:
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State government can have no religious views, either directly or indirectly, expressed through its legislation. . . . This proposition is the essence of the separation of church and state. As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.
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Protection against discrimination based on religious belief - or non belief - are already on the books in every state. Sadly, until courts across the board are willing to tackle this reality of religious based discrimination against LGBT citizens head on, we can expect more cop outs like that of the Supreme Court of Virginia in the Moore case. Here are highlights from the Blade story:

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The Virginia Supreme Court has denied a gay man’s effort to obtain restitution after he allegedly was forced to resign from his job at a state museum because of his sexual orientation.
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In a two-paragraph notice issued May 17, the state’s high court said it wouldn’t hear the case of Michael Moore v. Virginia Museum of Natural History because there’s nothing in the situation the justice system could rectify.
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Claire Guthrie Gastanaga, general counsel for Equality Virginia, said the failure of the Virginia Supreme Court to take up the case shows the need for the passage of state legislation that would help protect LGBT Virginians against workplace discrimination.
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“The bottom line is this decision just demonstrates what we’ve held for years — that LGBT employees don’t have any meaningful law to seek redress for discrimination, and frankly, they don’t have any cause of action under the old executive order, either,” she said.
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When he took office this year, Republican Gov. Bob McDonnell didn’t renew the executive order for workplace protection against gays and instead replaced it with a less forceful executive directive.
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Gastanaga said if there weren’t any meaningful protections under Kaine’s order, “there really, really isn’t any protection now” under McDonnell’s directive.